5.  The present application was introduced by Mrs Patricia Reynolds, a British national born in 1935 who lived in Hebden Bridge. Following the introduction of the application, Mrs Reynolds died and Ms Catherine King (her daughter) continued the case on her behalf. The Court has referred below to Mrs Reynolds as the applicant.
6.  The applicant’s son, David Reynolds, was born in 1969 and he died on 16 March 2005. The present application relates to his death.
7.  The facts of the case, as submitted by the applicant, may be summarised as follows.
8.  Mr Reynolds was diagnosed with schizophrenia in 1998. He was treated by a mental health team which was operated by the National Health Service Trust (“the NHS Trust”) and which assigned Mr Stephens as Mr Reynold’s Care Co-ordinator. On 16 March 2005 Mr Reynolds contacted the applicant and Mr Stephens: he was hearing voices ordering him to kill himself. The applicant and Mr Stephens went to Mr Reynolds’s home.
9.  Mr Stephens contacted the Crisis Resolution Home Treatment Team (“CRHTT”) informing it that Mr Reynolds might need to be hospitalised. The CRHTT is a community-based team of mental health professionals operated by the NHS Trust from the psychiatric unit of Calderdale Royal Hospital (“the Hospital”). Mr Stephens was told that no beds were available but that Mr Reynolds could have a crisis bed at the Intensive Support Moving On Scheme Unit (“the ISMOS Unit”). The local Council is responsible for the Unit and it is located in a building of which the Council is the occupier for the purposes of the Occupiers Liability Act 1957 (“the 1957 Act”). It is staffed by social workers experienced in the care of mental health patients and it provides an alternative to in-patient care where the risk assessment renders this appropriate. ISMOS Unit patients are not subjected to formal monitoring but staff regularly check on them and have custody of their medication. While patients are voluntary, cameras monitor the outside of the building so that the ISMOS Unit is alerted if a patient leaves.
10.  On the way to the ISMOS Unit Mr Reynolds told Mr Stephens that he found the ‘voices’ so distressing that he felt like killing himself. Mr Stephens therefore took Mr Reynolds to the Hospital (run by the Trust) for a clinical assessment. This was carried out by a psychiatrist of the CRHTT assisted by a psychiatric nurse and Mr Stephens. Mr Reynolds was assessed to be a low suicide risk. He had once again reduced his medication in order to drink and socialise at the weekend. His psychotic symptoms had therefore returned but he had stabilised rapidly as he had already re-taken his medication that morning. The voices had diminished and were not troubling him any more although he was terrified of their returning. During the assessment, he confirmed that he did not want to kill himself. He had no history of self-harm/attempted suicide, he had not acted on his earlier hallucinations and, even when having hallucinations, he had sought help.
11.  Since it was agreed that Mr Reynolds needed a safe and supported environment, he was admitted to the ISMOS Unit as a voluntary in-patient. He was allocated one of the crisis rooms across from the staff room on the sixth floor. During dinner he seemed withdrawn and unwell. Later that evening, he was found wandering outside the building but he returned with staff to his room. At 22.00 there was a change of shift, the new staff were briefed and Mr Reynolds appeared more relaxed and spoke with them.
12.  Mr Reynolds was due his medication at 22.45. At around 22.30 he broke a window in his room and fell from the sixth floor to his death.
13.  On 26 May 2005 an internal investigation into Mr Reynolds’ death was completed by the NHS. The resulting Report recommended, inter alia, that the bedroom windows in the crisis rooms at the ISMOS Unit be reinforced. On 20 May 2005 the applicant’s daughter wrote a letter of complaint to the Trust. On 20 June 2005 the Trust responded stating that it had reviewed the information available on the relevant date but that there had been no indication that Mr Reynolds would harm himself.
14.  The applicant could not afford legal representation for the Inquest. She considered applying to the Legal Services Commission for legal aid and, following receipt of the Coroner’s views as regards the two criteria applied by the Commission in deciding on a grant of legal aid, the applicant decided not to pursue a claim.
15.  On 22 March 2005 the Inquest was opened and adjourned by the Coroner. It resumed on 21 July 2005. The applicant attended with two daughters including Ms King. The Coroner sat without a jury. He explained that the Inquest was to find the answers to four limited factual questions: who was the deceased and how, where and when did the death come about. “How” was limited to “how the cause of death arose” since an Inquest was not an opportunity to examine the broad circumstances in which the death occurred so that all questions touching thereon would be excluded as would any question of civil or criminal liability.
16.  Oral evidence was given by, inter alia, the psychiatrist and the psychiatric nurse who assessed Mr Reynolds; by the relevant four members of staff at the ISMOS Unit; by the eye witness who saw him step through the broken window; and by the team leader of the CRHTT. The applicant gave evidence: she considered that her son had not attempted to commit suicide but rather had wished to go home and had not realised he was on the sixth floor. The applicant submitted questions to the Coroner prior to the Inquest and she and her daughters put questions to witnesses during the Inquest.
17.  The Inquisition Form recorded that Mr Reynolds had been placed in the crisis room for a few days for monitoring; that just a few hours later he broke a window, climbed through it and walked off the window sill; and that he sustained fatal injuries as a result of the fall and was pronounced dead that day. The Coroner’s conclusion as to death was an “Open verdict”, he explaining that, while those with schizophrenia presented a high incidence of suicide, there was insufficient evidence that Mr Reynolds intended to kill himself.
18.  Since the Coroner was concerned about a psychiatric facility on a sixth floor, in July 2005 he reported the incident to the NHS Trust under Rule 43 of the Coroners Rules 1984. By letter of 11 October 2005 the NHS Trust informed the Coroner that, since an ISMOS Unit was used when the risk was low, its location on the sixth floor was not unusual. However, the windows had been reinforced and, in the longer term, there were plans to re-locate the ISMOS Unit to a two storey dwelling.
19.  The applicant obtained legal aid and issued an action for damages under section 7 of the Human Rights Act 1998 (HRA”) against the NHS Trust and the Council, arguing that they had failed to adequately discharge their duties to Mr Reynolds in breach of Articles 2, 3 and 8 of the Convention in that they had failed to ensure his appropriate placement, failed to ensure that the ISMOS Unit was safe and failed adequately to assess the suicide risk or to admit him for in-patient care. An expert report obtained by the applicant from a consultant psychiatrist for the proceedings (although not served since the action was later struck out, see below) considered that the care of Mr Reynolds fell below the required standard.
20.  On 21 December 2006, the High Court decided the case of Savage ν South Essex Partnership NHS Foundation Trust ([2006] EWHC 3562, paragraphs 33-37 below).
21.  The NHS Trust and the Council served defences in March 2007. The Trust accepted that it owed a common law duty to take reasonable steps to try to prevent Mr Reynolds from taking his own life. The Council accepted that it owed a common law duty of care not to expose Mr Reynolds to a reasonably foreseeable risk of injury or harm on the premises as well as a common duty of care under the 1957 Act. However, both defendants argued that the applicant had no cause of action and that the case should be struck out since the High Court judgment in the Savage case had provided that one had to establish gross negligence of a kind sufficient to sustain a charge of manslaughter in order to establish a breach of Article 2 of the Convention. The applicant requested that her action be adjourned pending the appeals in the Savage case.
22.  On 13 July 2007 the County Court delivered its judgment striking out the applicant’s case pursuant to Rule 3.4 of the Civil Procedure Rules holding that there were no reasonable grounds for bringing the claim. The County Court noted that the High Court in the Savage case had accepted that, where the allegations were of clinical negligence, the measure of the duty owed to both voluntary and involuntary patients was as outlined in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000‑V) and in R (Takoushis) v. Inner North London Coroner and Another ([2006] 1WLR 46) namely, that there had to be at least gross negligence of a kind sufficient to sustain a charge of manslaughter. The applicant had not made any such allegations:
“It is thus clear that there is strong authority which would make it highly unlikely that any decision on appeal in the case of Savage would render [the Trust and the Council] liable under the provisions of Article 2.”
23.  In refusing the applicant’s request for an adjournment, the County Court did not accept that the law relating to the treatment of voluntary mental health patients was uncertain or in a state of development which was likely to lead to a change in the law which would enable the applicant’s claim to succeed. It was not persuaded that the prospect of the appeal in the case of Savage raised a sufficient prospect of an outcome favourable to the applicant as to justify refusing the orders sought by the defendants.
24.  Two barristers, experienced in clinical negligence, human rights cases and Inquest law, advised the applicant that an appeal had no realistic prospect of success. One of these opinions was submitted to the Legal Services Commission which withdrew legal aid in August 2007.